Ochieng v Ranmal Merag Ltd [1984] KECA 70 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it can revive an appeal that was struck out, but will attach strict conditions, including service on anyone whose property or interests are affected.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to reinstate a struck-out appeal
The Court has jurisdiction under rule 4 to entertain an application for extension of time to reinstate an appeal that has been struck out, since striking out is not dismissal.
The applicant's appeal had been struck out on technical grounds including the condition of the record and late institution. Relying on the ruling of Law JA in Belinda Murai & Others v Amos Wainaina, later upheld by the full court, striking out does not equal dismissal, so the Court could entertain the fresh extension application despite the striking-out order.
Service on a person directly affected
The good-faith purchaser of the auctioned property is a person directly affected by the intended appeal and must be served with the notice of appeal and the application.
Following Taracisio Githaiga Ruthibo v Mbuthia Nyingi, where a judgment-debtor whose property was under attachment was held directly affected, the court reasoned that setting aside the sale on a successful appeal would affect the purchaser to a considerable degree, even though he was not party to the original proceedings, attracting rule 76(1) service.
Explanation for delay and conditional extension
The extension of time was granted despite the applicant's fault and delaying tactics, but on strict conditions with automatic dismissal in default.
The court found no satisfactory explanation for the delay of four and a half to six months, no certificate under the proviso to rule 81(1), and a history of non-compliance with orders. Nevertheless, since the appeal had never been heard on merits, discretion was exercised in favour of a short, conditional extension requiring accounting for rents, deposit in court, payment of costs, and service on the purchaser.
Legal principles established
#- The striking out of an appeal does not amount to a dismissal, and the Court retains jurisdiction to entertain an application for extension of time to reinstate an appeal that has been struck out.
- A judgment-debtor or purchaser whose interest is the subject matter of an appeal is a person directly affected by the appeal and must be served with the notice of appeal and the application.
- The substantive rule providing for the power sought should appear in the heading of a Notice of Motion; the general enabling rule is surplusage.
- Although 'sufficient reason' is no longer required under rule 4 as modified, some explanation for the delay in instituting an appeal is still due.
Court orders
#- 1.Extension of time for instituting the appeal until 28 days from the date of the ruling, that is January 7, 1985
- 2.The applicant shall, before that date, render to the respondent certified true accounts of all monies received by way of rents in respect of Bukhayo/Mundika/1525 since the court order requiring deposit, and deposit that sum in court by the said date
- 3.The applicant must pay the costs of the application within twenty-eight days of taxation thereof
- 4.The applicant must serve a copy of the notice of appeal and of the application on the purchaser of the property by January 7, 1985
- 5.In default of compliance with any of these conditions the application shall stand dismissed
- On appeal from
- High Court of Kenya
- null
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (cap 9) - application for extension of time to institute an appeal under rule 81(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Ranmal Merag Ltd [1984] KECA 70 (KLR)", Case Analysis (1984). Civil Application (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/70/eng@1984-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.